2316659 (Refugee)

2316659 (Refugee) [2024] AATA 2992 (15 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2316659
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Rosa Gagliardi
DATE:15 April 2024
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 15 April 2024 at 10:33am
CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Court remittal – political opinion – rejected membership of a Taliban affiliated organisation – Tehrik-e Taliban Pakistan (TTP) – link between the cousin’s death and the applicant’s fear – First Information Report (FIR) – post-mortem report – delay in applying for protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 April 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Pakistan (a matter the Tribunal accepts), applied for the visa on 8 August 2016.
The delegate refused to grant the visa on the basis that the decision-maker in the first instance was not satisfied that the applicant was a refugee as defined by s.5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of that Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Pakistan there is a real risk he will suffer significant harm as defined in s.36(2)(aa) of the Act.
The Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Court of Australian [in] September 2023.
The matter is now before the Tribunal pursuant to an order of the Court.
The applicant appeared before the Tribunal on 5 April 2024 to give evidence and present arguments. The applicant was unrepresented. He claimed he had had adverse experiences with migration agents who had led him to keep pursuing his student visa applications and review and that he did not wish to be represented at hearing. The applicant also declined, against the Tribunal’s counsel, that the Tribunal engage an interpreter to ensure that he put forward his case as accurately as possible. The applicant stated that he could not guarantee that interpreters would faithfully reflect his testimony.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J of the Act, and there is a real chance that if the applicant was returned to Pakistan now or in the reasonably foreseeable future, he would be persecuted for one of those reasons and whether he would suffer serious harm. In the alternative, the Tribunal is required to assess whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Pakistan there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant in his statement accompanying his protection visa application stated that he came from [City 1], a [city] in Hazara Division of Khyber Pakhtunkhwa province (KP), Pakistan.[1] He arrived on a student visa [in] June 2012. His father owned a [business] in Rawalpindi and the applicant worked there sometimes. The applicant is a Sunni Muslim. He completed a Bachelor [degree] at [University 1] in KP. The applicant wrote as part of his statement that he was supposed to complete his bachelor’s [degree] in Australia, but did not do so as he became homesick, and his student visa was cancelled in November 2014. He could not continue his studies, and consequently “went into depression”.
[1] [Source redacted]
The applicant has consistently stated that he fled Pakistan via his student visa because it is claimed the Tehrik-e Taliban Pakistan (TTP), the Pakistan Taliban, had wanted to recruit the applicant and the applicant fled his country rather than join them. In revenge, the Pakistan Taliban murdered his cousin in 2016 because they mistook the applicant’s cousin for the applicant.
Country information shows that the TTP is active in the KP.
A recent deadly suicide attack on a military post in northwest Pakistan has raised fears of the return of armed rebellion in the country’s tribal regions that have seen a dramatic rise in armed attacks this year.
…
But the bulk of the attacks have targeted two provinces – Khyber Pakhtunkhwa in the northeast and Balochistan in the southwest.
Almost 93 percent of the total attacks took place in these two provinces, with Khyber Pakhtunkhwa the worst affected province, witnessing 416 attacks since November 2022 with the TTP walked out of the ceasefire with the government.
…
[2] ‘What explains the dramatic rise in armed attacks in Pakistan? Pakistan’s two border provinces have seen 93 percent rise in attacks since the TTP ended ceasefire last year’, Abid Hussain, 21 December 2023, Al Jazeera, What explains the dramatic rise in armed attacks in Pakistan? | Armed Groups News | Al Jazeera.
Among their main demands include the release of its members and the reversal of the merger of the tribunal region with the Khyber Pakhtunkhwa province. A stricter imposition of their interpretation of Islamic laws is also one of the demands.[2]
The TTP is also seeking the expulsion of Islamabad’s influence in the Federally Administered Tribunal Areas and neighbouring Khyber Pakhtunkhwa. The group also seeks to establish an Islamic caliphate in Pakistan.[3] In addition, there are concerns about the emergence of an obscure group, TJP, believed to be affiliated with the TTP, which has further raised concerns among policy makers. The group has been behind at least seven major attacks including the latest one in Dera Ismail Khan.[4]
[3] National Counterterrorism Center, National Counterterrorism Center | Groups (dni.gov).
[4] ‘What explains the dramatic rise in armed attacks in Pakistan? Pakistan’s two border provinces have seen 93 percent rise in attacks since the TTP ended ceasefire last year’, Abid Hussain, 21 December 2023, Al Jazeera, What explains the dramatic rise in armed attacks in Pakistan? | Armed Groups News | Al Jazeera
The applicant gave a detailed account of his claims at hearing, setting his narrative in time and place on the prompting of the Tribunal. The realistic manner of identifying certain key protagonists and being able to describe locations rendered the applicant’s statements at hearing credible.
Essentially, the applicant claims that in about 2010 while the applicant was studying in Islamabad, he befriended some young men at a local mosque who told him that they were involved in humanitarian work and were collecting donations for refugees from Afghanistan who were living in Pakistan near the Afghan border. The applicant did not suspect anything untoward in their activities, particularly as they were well-thought of members of the mosque. About six months after meeting the men he began to give them donations. His father, as a businessman, had also been willing to give the self-titled humanitarian group significant donations per year.
About six months after the applicant began to make donations, he asked the men to take him to see one of the refugee camps to see how his and his father’s funds were being used. In late 2011 or early 2012 they drove him to a location somewhere past Peshawar outside of the control of the Pakistani authorities. Sometime into the journey the applicant was blindfolded and when they had come to a halt the applicant observed there was no refugee camp but a big house in an isolated area where he was introduced to a man with many armed men. He was told by the man in charge to sit down and was offered tea. He then thanked the applicant for the assistance provided thus far and told him they were helping the Afghani people to stop drone attacks and fight the Americans and asked if he would join them as a fighter.
The applicant was surprised and frightened as the erstwhile friends had only referred to acts of humanitarianism and the applicant had not had any indication from them about their true purpose. Surrounded by armed men the applicant felt he had to appease them and told them he would join, but at a later stage. At that stage he was studying from his home in [City 1] and stopped going into Islamabad to avoid the youths who had befriended him in the first instance on the pretext they were involved in humanitarian works.
When he arrived home, the applicant told his father what had happened, and his father told him he should leave to secure his safety. The applicant had anticipated going to the United Kingdom and was undertaking his IELTS English test but obtained a student visa for Australia instead.
Although the applicant’s student visa had been cancelled in November 2014 – after which he sought review at the Tribunal, lodged an appeal with the Federal Court and sought ministerial intervention, the applicant applied for a protection visa in 2016 because he had been advised by a lawyer that he only had 50 per cent chance of obtaining residency via a protection visa application in Australia, whereas if he pursued his student visa application he was all but guaranteed permanent residency. The applicant followed that advice because as he stated at hearing, he was a genuine student and if a student visa gave him a greater chance of avoiding returning to Pakistan, then he thought he should take it.
Then in Pakistan [in] July 2016 the applicant’s cousin was driving his father’s car to a wedding at night when men shot his cousin and drove off in what is believed to have been a case of mistaken identity. The attackers were never caught or identified but the applicant believes that at that stage word had travelled in his home area that the applicant might return to Pakistan for his relative’s wedding, even though ultimately his visa did not permit him to do so. Seeing someone similar to the applicant driving his father’s car, the assailants shot at the car and killed the driver, the applicant’s cousin.
The applicant has submitted a First Information Report (FIR) to the police by the applicant’s father to initiate an investigation into his nephew’s ([Mr A]’s) death. The police report, dated [in] July 2016, indicates that [Mr A] was driving the applicant’s father’s car to attend a relative’s wedding but when they got to the shrine, they saw some 5 to 6 unknown persons armed with weapons and considering him to be the applicant, fired at the car and killed [Mr A], who died on the spot. The report also states the perpetrators fled the scene and the applicant’s father expressed the view that the assailants wanted to kill the applicant because in respect of the applicant’s father, “they are continuously threatening through phone calls to me that my son [the applicant] who is studying/residing abroad now a days, to compromise and also co-operate us in raising fund as he did before. If you do not comply with our order your son will not be able to return to Pakistan but not even to life, mind it”. The report also states that in the view of the applicant’s father, the attackers assumed that the applicant was going to attend the wedding also. The applicant’s father wrote, "this incident was witnessed by numerous people who were present at the spot (his nephew)…was driving my Car which was packed with the marriage gifts alone”.
The FIR also refers to the dead body being sent for post-mortem and handed over to the doctor in charge. Together with the FIR the applicant has submitted a detailed post-mortem report for [Mr A] indicating the body had been brought to the village at 10.30pm, indicating the young man had injuries to his ribs and surrounding area. Other injuries were to his pleura, right and left lung, his pericardium and heart were badly damaged, and blood vessels were also damaged. A standard form used by those conducting a post-mortem was also submitted as evidence and is an outline of a body for identifying injuries on dead bodies depicting multiple injuries to the chest for the deceased.
At hearing the applicant stated that the army’s infiltration of many aspects of civil life in Pakistan now meant that he could not turn to the authorities and that they would not be in a position to assist him. Despite the FIR submitted and some initial investigations, the applicant did not consider that a concerted effort to find the assailants of his cousin was ever made. Country information confirms the applicant’s statements that the army in Pakistan has come to play a political role in the governing of the country.
Amid domestic political turbulence and a deteriorating economy, the civilian government increasingly relied on a power-hungry military for stability and support. Indeed, the domestic political rollercoaster underway since 2022 showcases the military’s involvement in the country’s politics, with then-Prime Minister Imran Khan’s worsening relationship with the military eventually leader to his ouster and imprisonment.
…
In Pakistan, the military has effectively utilised its influence over the state to augment its economic power. Its involvement in “industry, commerce, and business”, enabled the military to develop a economic power positions the military (sic) as a dominant player in both the private and public sectors.
…
[5] ‘Cause and Effect: The factors that make Pakistan’s Military a Political Force’, Observer Research Foundation, Sania Muneer and Saroj Kumar Aryal, 28 February 2024, Cause and Effect: The Factors that Make Pakistan's Military a Political Force (orfonline.org).
The military has often sought the judiciary’s endorsement to legitimise its actions, leveraging the unity within the broader ‘establishment’ during times of crisis…[5]
FINDINGS AND REASONS
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

The Federal Court remitted the matter to the Tribunal because it was considered the previous Tribunal’s assessment of the case had not dealt with in a significant way the supporting material before the Department and the Tribunal, consisting of the First Information Report and the related post-mortem report.
In its consideration of the material before it, the Department stated that documents from Pakistan could be obtained fraudulently and that therefore little weight would be given to the FIR submitted. It also had concerns about the delay in the applicant lodging his protection visa application. The Department also found that even if it had accepted the information detailed in the police report (which it did not) it was not satisfied that the applicant’s cousin was killed for the reasons he claims.
After having considered the evidence, including the consistent evidence at hearing, the Tribunal has found that the FIR points to a critical incident having occurred in Pakistan, involving the death of the applicant’s cousin. The Tribunal appreciates that a FIR of itself is not proof that an event actually occurred as it is a trigger for the authorities to investigate the contents of the report. Nonetheless, the Tribunal considers that it would be difficult to have police sign off on an FIR if they were not satisfied that the disclosed events had occurred. The Tribunal also accepts that some documents coming from Pakistan might be fraudulently obtained or are indeed fraudulent. Nonetheless, the FIR does appear to have an official quality as it contains a file number and refers to it being a report of cognizable offence under section 154 of the Criminal Procedure Code, lodged with the Inspector General Police in [City 1].
Furthermore, it has not been found that the FIR central to this case is fraudulent. A forensic analysis of the document has not been conducted to positively determine it is fraudulent or was fraudulently obtained.
The Tribunal has also considered the post-mortem report regarding the applicant’s cousin which also does not raise concerns about its authenticity and finds that together with the police report these documents represent compelling evidence that the applicant has been truthful about his cousin being killed [in] July 2016, as claimed, and that his cousin was killed in the way claimed by the applicant. In isolation the FIR might not have been persuasive but in combination with a post-mortem report which is consistent with the police report, the Tribunal is satisfied that the events set out in the FIR and the post-mortem report regarding the applicant’s cousin did indeed occur.
In terms of the applicant’s claims that the TTP had set a trap for the applicant to be recruited and that operatives of the TTP mistook his cousin for the applicant in July 2016, this matter rests on the applicant’s credibility. The Tribunal did not discern any major and significant inconsistencies in the applicant’s evidence. Indeed, it has remained largely consistent since he lodged his application in August 2016. His narrative at hearing gave the Tribunal the impression that the applicant was referring to real persons and places in his account of how he came to meet those he had considered his friends initially, and who had according to the applicant, been cultivating him to recruit into the TTP.
The applicant’s evidence about the process which the young men had undertaken to recruit him was credible and detailed. Given the TTP’s influence in the area of Khyber Pakhtunkhwa, the Tribunal does not consider it is far-fetched that young men in the area were being persuaded to join the organisation on the pre-text that it was accumulating funds for humanitarian purposes and specifically for Afghan refugees who had come into the area, given its proximity to Afghanistan. As of October 2013, Pakistan was the host of 1,621,525 Afghan refugees, being only registered refugees as a significant number residing in urban areas do not approach UNHCR.[6]
[6] ‘Repatriation of Afghan Refugees in Pakistan: Voluntary?’, Valentina Hiegemann, Oxford Monitor of Forced Migration, Vol.4, No.1, OxMo-Vol.-4-No.-1-Final (adsp.ngo).
The Tribunal therefore accepts the applicant’s account of having been taken before an important figure in the TTP blind-folded to secure his pledge to the organisation – a pledge the applicant had no intention of following through with as it was not consistent with his aspirations to pursue a professional career and personal aspirations.
Having accepted that the police and the post-mortem reports are genuine, the Tribunal also accepts that the applicant’s father had received calls in which the callers were continuously threatening that the applicant would be killed if he did not co-operate with the callers in raising funds as he had done previously. Similarly, the Tribunal also considers it plausible and accepts that the applicant had indicated he wanted to return to Pakistan in July 2016, to see his family as he was homesick and wanted to attend the wedding of his relative (a cousin but not the one killed). As the applicant was unable to return to Pakistan for reasons of his migration status, the Tribunal does not accept it is a stretch that having considered the applicant was returning for the specific event of his relative’s wedding, and his cousin was driving the applicant’s father’s car with a carload of gifts, he was shot at by Taliban operatives and killed believing it might have been the applicant.
The Tribunal finds that the authenticity of the police post-mortem reports is corroborative of the applicant’s claims that he was at risk of being killed by the Taliban and that his cousin was killed because he was mistaken for the applicant. Consequently, the Tribunal accepts there is a direct link between the applicant’s cousin’s death and his well-founded fear of returning to Pakistan now or in the reasonably foreseeable future having found in his favour regarding his credibility.
Ordinarily, the Tribunal would place adverse weight on the fact the applicant waited several years after coming to Australia to lodge his protection claims. The general wisdom is that if someone has a genuine fear of serious harm, they will seek refuge as soon as possible or immediately on arrival in Australia. At hearing the applicant was persuasive however in attributing that delay to a genuinely held belief that he would attain permanent residency given his previous inclination to study in Pakistan, and that a positive result following a student visa pathway would be better than a 50 per cent chance in obtaining protection under the protection visa regime. At hearing the applicant was distressed that he had been essentially dissuaded from pursuing a protection visa application initially, which then reflected adversely on his credibility.
To be fair to the representatives advising the applicant there may have been no malicious intent behind their advice. They may merely have suggested that given his interest in studies in his field, permanent residency would be an easier way to pursue his goal to remain in Australia. These are reasonable assessments being made by representatives on an everyday basis and the representative may merely have been referring to statistics about the chances of obtaining refugee status in Australia generally, rather than referring to his case specifically. Ultimately, the applicant was found by a tribunal not to be a ‘genuine student’ which then set the applicant off on the only legitimate avenue he would have for remaining in Australia – a protection visa application. In this case, the Tribunal finds that the applicant’s intention was to build his life in Australia away from Pakistan in the best and most straight-forward manner he could, and it cannot be discounted that the applicant has a well-founded fear of persecution because he pursued a student visa pathway in the belief it would secure him permanent safety from the serious harm he feared in Pakistan.
Having considered the applicant’s claims and having regard to his credibility and the supporting documentation, which is probative corroborative material of those claims, and having considered the country information about the political and security situation in the Khyber Pakhtunkhwa regarding insurgent and terrorist operations, the Tribunal is satisfied that there is a real chance that the applicant will suffer persecution on return to Pakistan on account of his political and imputed political opinion/religious views in having rejected membership of a Taliban affiliated organisation that wishes to set up a caliphate in Pakistan.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Rosa Gagliardi
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2992

15 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice